Factum

Backgrounder

Court File No. 35591

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR

Appellants/Respondents

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent/Applicant

- and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondent/Respondent

Memorandum of argument

PART I—OVERVIEW and STATEMENT OF FACTS

A. Overview

1. This is a motion to extend, for a further 6 months, the suspension of the declaration of constitutional invalidity of ss.14 and 241(b) of the Criminal Code. Without a further extension, the law will be in a very uncertain state on February 7, 2016, creating risk to vulnerable Canadians, and confusion about the scope of criminal liability. While the Government has moved with diligence to respond to this Court’s order, the intervention of a federal election and the inherent difficulty of developing policy and legislation in this complex area has made it impossible for the Government to develop an appropriate response before the current suspension expires.

2. The applicant also requests that the motion be expedited. Because the decision on this motion will directly affect how the Government of Canada responds to this Court’s judgment, the Government would like to know the result of this motion at the earliest opportunity. Accordingly, we propose that the Court require that the parties respond to this application within three days to facilitate this Court’s early consideration of the motion.

B. Statement of Facts

3. On February 6, 2015, this Court rendered its decision. The key paragraphs setting out the conclusions of the Court on the constitutional issues are paragraphs 126-128:

4. Following the Court’s judgment, the Department of Justice began work on recommendations to the Ministers for a federal response. Among the steps taken were:

• Analysis of the complex issues that had to be addressed^[1]
• Meeting with provincial and territorial officials, and participating on a federal-provincial territorial working group on physician-assisted dying that was established on May 12, 2015^[2]
• Establishment of an External Advisory Panel on July 17, 2015^[3]

5. On July 17, 2015, the former Ministers of Justice and Health, the Honourable Peter MacKay and the Honourable Rona Ambrose, announced the appointment of an Expert Panel to consult and report on legislative options to respond to this Court’s decision. The Panel’s terms of reference require it to consult with key stakeholders and summarize the results of its consultations to the Ministers of Justice and Health. Its original mandate required it to report by November 15, but on November 14 the mandate was extended to December 15, 2015.^[4] The terms of reference limited the types of consultation that could take place during the federal election campaign.^[5]

6. The federal election campaign began on August 2, 2015, when the Governor General dissolved Parliament, and continued until Election Day, October 19, 2015. The “caretaker convention” that governs government activities during election campaigns meant that there were limitations on the work that could be done, both during the lengthy election period and until the new government was sworn in on November 4, 2015.^[6]

7. The Expert Panel has done a prodigious amount of work in a relatively short time. The Panel has met with interested groups across the country, consulted with experts both in Canada and in countries that have provided legislative access to physician-assisted dying, and provided an online questionnaire for individual Canadians, which has yielded over 14,000 responses.^[7] The Panel’s work has demonstrated that a large number of individuals and groups are fully engaged in the process, and the Government has been counselled to take great care in crafting any legislation on physician-assisted dying.^[8]

8. New Ministers of Justice and Health were sworn in on November 4, 2015. Both Ministers were briefed on the status of this case and the state of policy development work in their first week of office. On November 24, Cabinet met to discuss the issue. The Government’s plans include a desire to set up a committee to study the issues. It is possible that such a Committee may be set up in the week of Dec. 7-11, 2015, the final sitting week for Parliament in this calendar year.^[9]

PART II- ISSUES

9. Should the Court extend the suspension of the declaration of constitutional invalidity in this case? Should the motion be expedited?

PART III—ARGUMENT

A. The Test for Extending the Period of Suspension

10. From time to time, this Court has suspended declarations of constitutional invalidity when necessary to maintain order and protect the rule of law.^[10] That principle has been applied many times in criminal cases, where public safety may be at risk without a suspension.^[11] The importance of protecting public safety has meant that the Court has, on occasion, extended the initial suspension where the legislative process was ongoing.^[12]

11. This Court has yet to set out a specific test for when an extension of time should be granted in these circumstances. The main issue must clearly be whether the circumstances prompting the original suspension have changed in any way: has the need for a suspension been attenuated, or have the potential negative consequences of continuing a suspension been reinforced?^[13] Factors that govern applications for extensions in other areas,^[14] such as the reasons for the delay, the diligence of the government in responding to the Court’s order, and the length of the extension sought, might also play a part. The overriding concern, however, must remain the protection of the public.

B. The Need for the Extension

12. The concerns that prompted this Court to suspend the declaration of invalidity have not dissipated since judgment was delivered. As this Court noted in its reasons:

13. The nature of the challenge facing Parliament has not changed. The Court accepted that a legislative response would require a “carefully designed and monitored system of safeguards.”^[16] Indeed, it was the possibility of crafting a scheme with such safeguards that led the Court to reject the idea that weakening the prohibitions will inevitably lead to the casual termination of life, including the lives of individuals who did not wish to die.^[17] The statutory regimes in place in Oregon, Washington, Vermont, Belgium, Luxembourg and the Netherlands illustrate the difficult choices that must be made and the diversity of potential responses. The challenge of crafting a new regime that takes account of diverse interests now falls to a new Parliament, to new Ministers of Justice and Health, and to their provincial and territorial counterparts. All possible options will be carefully considered.

14. The task facing Parliament is a daunting one. The affidavits of Carole Morency and Stephen Mihorean describe the extensive nature of the work done so far, and the very high level of engagement of individuals, experts and groups in the issues. Thorough Parliamentary consideration of the range of possible responses will take time, since Parliament will want to hear further from individuals, experts and groups, and debate the issues. Canada has been counselled by experts in foreign jurisdictions with comparable legislation to take the necessary time to consider a new law.^[18] With the exception of Switzerland, all of the jurisdictions have comprehensive legislative regimes; in a federal state such as Canada, the response can be more complicated still, as governments work together to ensure a harmonious system of regulation.

15. The task facing provincial legislatures will be equally daunting. The impact of any new laws will be felt by a variety of regulated medical professionals (physicians, nurses, pharmacists) and institutions (hospitals, hospices, nursing homes). Provincial regulation is a necessary and important part of a comprehensive response to this Court’s decision.

C. The Government’s Diligence in Responding

16. As set out in the affidavits of Carole Morency and Stephen Mihorean, the Government has been diligent in doing preparatory work in response to the Court’s decision. Work has been continuous. Because of the importance of the issues, outside expertise has been sought, both at the federal level and at the provincial. Consultations between governments have been undertaken.

17. Preparation of the government response has been inhibited by the fact of an intervening election campaign, which has meant less than the usual amount of sitting time for Parliament this fall, and less time for the new Ministers who must implement the federal response. The election also imposed some limitations on the work of federal officials^[19] and the federal Panel.^[20] In the circumstances, the government response has been as diligent as possible.

D. The Length of the Suspension Sought

18. The length of a further suspension sought, 6 months, is reasonable in the circumstances. In Swain, the Court granted an additional period of 3 months to the original 6 month “transition period”, with the possibility of further extensions as legislation moved through Parliament.^[21] In Feeney, a one month extension was granted to an original “transitional period” of 6 months.^[22] At the time of the extension order in Feeney, remedial legislation was before Parliament; the order contemplated that the extension would continue until Royal Assent was granted.

19. Here, no bill is before the new Parliament. Given the significance of the task and the need for a complex regulatory regime, the preparation of appropriate federal and provincial responses will be a formidable challenge. Six months is a reasonable request in the current circumstances.

E. The Potential Impact on Rights Holders of Extending the Suspension

20. There will be an undeniable impact on competent adults who are prepared to give free and informed consent to physician-assisted death within the proposed 6 month extension period. However, it is important to remember that the interests of people desiring assisted dying are not the only interests at play here, though they too would benefit from clear laws at the federal and provincial levels. Vulnerable individuals, including people with disabilities, have concerns that must be addressed.^[23] Other stakeholders, such as physicians who might be called upon to assist (some of whom may object to providing assistance), families and the police also require legislative guidance.

21. This Court recognized in its decision that “aspects of physician-assisted dying may be the subject of valid legislation by both levels of government.”^[24] Of all the provinces and territories, Quebec has done the most to prepare for a revised regulatory framework through the passage of its Loi concernant les soins de fin de vie.^[25] Given the lengthy period of study that preceded the Quebec legislation, there is much all jurisdictions can learn from Quebec. Implementation of that law is currently the subject of litigation in that province.^[26] In other provinces, work on responses to the Carter decision continues; Nova Scotia, Saskatchewan, Prince Edward Island, Manitoba and Ontario have all requested that the Attorney General of Canada seek an extension of the suspension, and that the federal government, the provinces and the territories continue to work collaboratively to design an appropriate framework.^[27]

22. Legislation in this area involves complex issues of social policy, where governments must mediate between the competing claims of different groups. In such circumstances, this Court has adopted a deferential approach to legislators.^[28] The fact that the potential impacts of any legislation will be felt by multiple groups justifies a further extension, as Parliament strives to respect the impacts on all concerned.

F. The Legal Uncertainty in Respect of the Remedy Granted

23. A further factor justifying an extension of the current suspension is the uncertainty with respect to the remedy granted by the Court. The exact nature of the remedy imposed by this Court is uncertain.

24. The Court’s judgment describes the remedy at para. 127 as follows:

25. There are two possible readings of this part of the judgment.^[29] Either the Court has struck down the provisions in their entirety, or the provisions have been “read down” (or an exception has been “read in”). This ambiguity gives rise to a very high level of legal uncertainty. Moreover, without a comprehensive legislative response, each of the interpretations results in unacceptable risks, uncertainty, or both. If the provisions have been struck down, all consensual killings and assisted suicides (not just physician-assisted ones) would no longer be criminal offences after February 6, 2016. If the provisions were read down, much would still be unclear, for example: in what precise circumstances a physician would be able to benefit from the exception; what steps a physician would have to take to determine the genuineness of the person’s wish to die; how to respect some physician’s reluctance to participate.

Conclusion

26. The public interest in the issues raised in this case could not be higher. Parliament is, or will shortly be, fully engaged in studying the issues to inform an appropriate response, as are provincial and territorial legislatures. Many interest groups are also fully engaged in making their concerns known. Parliament should be given a further opportunity to consider all possible responses to this Court’s decision.

PART IV- ORDER SOUGHT

27. The applicant requests an order extending the suspension of constitutional invalidity of ss. 14 and 241(b) of the Criminal Code for a further 6 months.

28. Parliament has an important opportunity to begin dealing with a response to this Court’s decision in the last House of Commons sitting week this year, Dec. 7-11. The Government is working towards a motion to establish a special committee in that week.^[30] To facilitate Parliament’s critical work, it is requested that the timelines for the respondent/appellant to respond to these issues be shortened to three days, and the applicant/respondent be given one day to reply.

All of which is respectfully submitted

Dated at Ottawa, this 3^rd day of December, 2015

 

Robert J. Frater Q.C.
Counsel for the Applicant/Respondent

For

Donnaree Nygard

PART V – authorities

• ^[1] Affidavit of Carole Morency dated December 2, 2015, paras. 6-7 (“Morency Affidavit”)
• ^[2] Morency affidavit, paras.8-10
• ^[3] Morency affidavit, para. 11
• ^[4] Morency affidavit, para. 20
• ^[5] Affidavit of Stephen Mihorean dated December 2, 2015, paras. 3,9   (“Mihorean affidavit”)
• ^[6] Morency affidavit, para.14
• ^[7] Mihorean affidavit, paras. 5-8, 11-16
• ^[8] Mihorean affidavit, paras. 19-20
• ^[9] Morency affidavit, para. 21
• ^[10] Re Manitoba Language Rights, [1985] 1 S.C.R. 721
• ^[11] Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101 at para.167; R. v. Demers, [2004] 2 S.C.R. 489, at paras. 56-64
• ^[12] R. v. Feeney, [1997] 3 S.C.R. 1008; Swain v. The Queen SCC File #19758 (Oct. 28,1991)
• ^[13] Schachter v. Canada, [1992] 2 S.C.R. 679 at 715-17.
• ^[14] In terms of extensions of time generally, R. v. Roberge, [2005] 2 S.C.R. 469, at para.6
• ^[15] Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 98
• ^[16] Carter at para. 117
• ^[17] Carter at paras. 114-117
• ^[18] Mihorean affidavit, para. 9
• ^[19] The “caretaker convention” is described on the website of the Privy Council Office: http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=convention&doc=convention-eng.htm
• ^[20] Mihorean affidavit, para. 9
• ^[21] Swain v. The Queen, SCC File #19578, Oct. 28,1991
• ^[22] R. v. Feeney, [1997] 3 S.C.R. 1008
• ^[23] Mihorean affidavit, para.20
• ^[24] Carter at para.53
• ^[25] RLRQ, c. S-32.0001
• ^[26] D’Amico et Saba c. Procureure Générale du Québec, Dec. 1, 2015, No. 500-17-082567-143 (C.S.Q.). Quebec has announced it will appeal the judgment.
• ^[27] Affidavit of Eric Lafleur dated Dec. 3, 2015, exhibits “A”, “B”, “C”, “D” and “E”.
• ^[28] Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, at para.221; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, at para.94
• ^[29] The meaning is not further clarified by the Court’s formal order, which does not provide answers to the constitutional questions.
• ^[30] Morency affidavit, para. 21

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